Setting the right tone

Employees
in the UK are becoming more familiar with their right to maintain dignity in
the working environment. But what exactly does this broad concept mean, and
what should employers be doing about it?By Katie Jackson-Turner and Joe Glavina

When an employee complains about his dignity at work – or more accurately
the lack of it – the complaint usually relates to some kind of harassment or
bullying.

In general terms it is treatment the individual finds intimidating, hostile,
offensive or disturbing. Usually it is meted out intentionally towards an
individual but it can, equally, be a complaint relating to an unpleasant and
hostile working environment.

For example, sexually explicit material which is now readily available to
many employees on the Internet can easily be downloaded and disseminated in the
workplace via e-mail or more conventional means. Such material could be sent
directly to an individual or circulated indiscriminately. Either way it may form
the basis of a complaint for which the employer may be liable.

There is, of course, a raft of equal opportunities legislation in the UK
geared to addressing the issue of dignity at work. It is unlawful for employers
to treat a person less favourably on the grounds of his or her sex (Sex
Discrimination Act 1975), race (Race Relations Act 1976) or disability
(Disability Discrimination Act 1995). Indeed, there was even a specific piece
of legislation covering the subject – the Dignity at Work Bill – put together
by the MSF Union in 1997 and steered by Lord Monkswell through the House of
Lords in December 1997 and January 1998. Attempts to introduce the Bill into
the House of Commons, the first step before a Bill can become law, was blocked
by John Major’s Conservative Government in February 1997. Shortly afterwards a
General Election was announced and the Dignity at Work Bill has been on hold
ever since.

However, its failure to reach the statute books has not exactly left a hole
in this important area of social policy because it did little more than repeat
and highlight existing measures on equal opportunities.

One of the reasons for the significant increase in interest in this area
over recent years is the fact that there are no upper limits on awards made
under any of the discrimination statutes. The removal of the cap on
compensation that can be awarded for discrimination claims has led to more
claims being brought and has forced employers to take such claims more
seriously.

Employees are increasingly aware of their right to dignity at work and are
more willing to take action. This is partly due to the media interest in
high-profile cases and reports of compensation running to hundreds of thousands
of pounds.

Harassment

Although the word ‘harassment’ does not actually appear in any of the
anti-discrimination legislation, the Acts state that it is unlawful to
discriminate against an employee by subjecting him or her to a detriment.

It has been accepted by the courts that harassment, provided it is not particularly
minor, will constitute a detriment. So while cases occasionally turn on whether
the harassment in question is sufficiently serious to amount to a detriment,
normally the key question is whether it amounts to discrimination.

For the reasons already mentioned, the number of discrimination claims being
brought in the employment tribunals has been rising steadily and is set to
continue.

Harassment takes many forms, occurs on a variety of different grounds and can
be directed at one person or many people. An essential characteristic is that
it is unwanted by the recipient and that the recipient finds the conduct
offensive or unacceptable.

Conduct becomes harassment if it is persisted in once it has been made clear
that it is regarded by the recipient as offensive, although a single incident
may amount to harassment if it is sufficiently serious. It is the unwanted
nature of the conduct that distinguishes harassment from friendly behaviour
which is welcome and mutual.

Employers’ defence

All three discrimination Acts state that an employer is liable for any
unlawful discrimination carried out by its employees during the course of their
employment, unless the employer can show that it has taken such steps as were reasonably
practicable to prevent those acts.

Therefore, employers who do not try to prevent harassment taking place may
find that they are liable for the damage done by a harassment campaign by one
of their employees. In most cases employers should be able to point to their
equal opportunities policy as good evidence of their attempts to combat
harassment and other forms of discrimination. Certainly, there should be a
procedure in place for dealing with allegations of harassment.

In some instances, tribunals have found dismissals to be unfair because the
employer did not follow its own procedure. There should be someone that
employees can approach if they are being harassed and they should be able to
feel that any complaint they make will be dealt with fairly and promptly.

Managers should be trained so that they can try to create a working
environment free from harassment. They should be able to recognise harassment
and they should know how to deal with the problem.

Dignity – a broad concept

Although harassment is perhaps the most obvious way a person’s dignity at
work might be undermined, dignity at work is a broad concept which includes
areas such as the right to privacy and the right to respect for family life.
These are new and developing areas of employment law and difficult for
employers to manage.

Balancing the employee’s right to privacy against the employer’s need to
ensure that, for example, its e-mail and Internet facilities are not being
misused is difficult.

Legislation introduced in October last year (the Regulation of Investigatory
Powers Act 2000, and associated Regulations) prohibits employers from snooping
or eavesdropping on their employees’ telephone conversations and e-mail
exchanges unless in certain specific circumstances.

In addition under the Human Rights Act 1998 we all have a right to privacy.
While as a general rule, employees will not be able to sue their employer
directly under the HRA, an employer who has breached any of the new ‘human
rights’ will have difficulty justifying its behaviour before an employment
tribunal. As a consequence, constructive dismissal claims which in the past
have been difficult to bring successfully are more likely to succeed.

Respect for family life was one of the themes that the Labour Party campaigned
on in its election manifesto prior to being elected to Government.

Since then we have seen the introduction of a host of new legislation
designed to protect the right to respect for family life. For example, for the
first time part-time workers, fathers who want to take parental leave, and
parents or carers who need time off work to deal with domestic emergencies are
directly protected by the law. In addition maternity rights have been extended
and will be further extended in the future.

Personal injury

In serious cases of harassment and/or bullying the victim may suffer either
physical or psychiatric injury. As the Court of Appeal has recently confirmed,
in this type of case when an employment tribunal awards compensation for the
unlawful discrimination (uncapped), it also has jurisdiction to award damages
for both the physical and psychiatric injury that has been suffered.

This is an attractive course of action for employees because it means that
they are free to pursue compensation for their personal injuries without having
recourse to the usual civil courts. This avoids the risk of having to pay the
employer’s costs in the event of the action proving unsuccessful.

From the employer’s point of view there is an important practical point in
relation to settling claims of this type. When it comes to settling claims, it
is common for employees’ advisers to ask for all personal injury claims to be
"carved out" of the compromise agreement.

However, there is no reason why personal injury claims of this type, brought
on the back of a discrimination claim, cannot be settled.

Katie Jackson-Turner and Joe Glavina are solicitors in the employment
department of Addleshaw Booth & Co

Dignity – European style

Since the election of the Labour
Government the UK has become more willing to embrace European directives
designed to recognise and protect the right to dignity at work for all
employees of member states.

Age discrimination in employment (December 2006),
discrimination on grounds of sexual orientation, religion or belief (December
2003) are to be barred by the new EU Equal Treatment Framework Directive which
represents the most important European discrimination legislation in the last
quarter of a century. The Directive states that harassment shall be deemed to
be a form of discrimination "when unwanted conduct … takes place with
the purpose or effect of violating the dignity of a person and (our emphasis)
of creating an intimidating, hostile, degrading, humiliating or offensive
environment".

This is a more stringent test than currently applies under UK
sex and race discrimination law, where only a showing of detrimental treatment
is required. It means that when the Directive is implemented, those complaining
of harassment on the newly introduced grounds (sexual orientation, age or
religion) are likely to be better off bringing a complaint that they were
subjected to a detriment generally than by using any special provisions
relating to harassment.